Readers' comments

The Law - the mystical art of turning one averaged sized word into 5 books and a TV show.

Intent

Intent is just one word. The presence of sniffer dogs symbolises intent. Using thermal imaging shows intent.

That's fine in the context of transport systems or regular security checkpoints, where intent has been proven to exist for the transfer of people, drugs and bio-hazards. Scan away guys and get some more dogs. I hear a stupidly low number of shipping containers ever get searched.

Those are federal jurisdictions. A home is your personal jurisdiction, as described by law.

The intent to invade that space is unacceptable without due process - be it by sniffer dog, thermal scanner or NSA analyst. It's good to see the Justices quoted are intent on ruling against such unconstitutional intentions.

I am confused. Did Justices Alito, Roberts, Kennedy and Bryer dissented because the "odors emanating from a house may be detected from locations that are open to the public" but they did not object, on the same fourth-amendment grounds, to disallowing the use of "a thermal-imaging device at a private home to determine whether marijuana was being grown"? But thermal imaging devices only detect photons emitted (or emanated) from contents of the house from a location open to the public. The only difference is the kind of particles emanated and being detected. By the logic of Justices Alito, et al., thermal imaging should be allowed, too. Were there no lawyers present with a little basic knowledge of science when the case was argued?

We need an organization that gets as worked up over the 4th Amendment as the NRA gets worked up over the 2nd.
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The only people I've known who cherish and fiercely defend the 4th are members of the Criminal Bar.

The reason that you will never see any strong grassroots movement to push 4th Amendment issues is because the Amendment primarily protects the guilty.

Although it is written to protect everyone, the remedies for violations of the 4th Amendment are entirely focused on suppression of evidence of guilt, which per se only helps the guilty. There is no corresponding remedy for the innocent person subjected to the annoyance of a search. You get pulled over, the police search the car as a result of a dog sniff, and find nothing, you are then sent on your way none the worse for wear other than the time out of your day and the frustration. Curtailing the scope of the 4th Amendment does only two things, which have to be balanced against one another: it marginally reduces your inconvenience, versus significantly protects the guilty. When those two factors are weighed, the innocent public hates the guilty getting off on technicalities far more than it hates the occassional inconvenience of a search.

Even the issue of protection of digital information is for the primary benefit of the guilty. When a pedophile is attempting to bring in a laptop of illegal photos of child pornography, restrictions on searching that laptop protect him and only him. Nobody cares about your vacation photos, or your unhealthy addiction to Angry Birds, or your pet names for your spouse and kids -- law enforcement will take one glance and ignore it. They have hundreds of other cases to worry about than to waste time getting titilated over your salacious diary entries or your "likes" on Facebook. Your laptop will be inspected, and then quickly forgotten in the flood of other searches that are occurring.

People have a theortical reverence for the 4th Amendment, and think that their personal information is of such importance that the government should not even be able to know of its existence. In reality, the government doesn't care about you or me, so we all need to get over ourselves. They are trying to find the bad apple in the barrel, and that requires that they go sorting all the apples. Good apples have no interest to law enforcement, and are quickly forgotten.

Data and metadata is huge; it may become one of the most important issues of our time. To whit, the current status quo is that data in the hands of a 3rd-party does not have the same expectation of privacy as if it is my sole possession. For the most part, a reasonable assertion. However in the internet age, everything I do gets passed through a 3rd party at some point, basically rendering the concept of privacy null and void.

My cell phone tracks my movement to the grocery store, whose cameras now track facial/head movements to see how customers respond to product placement, etc. Then my rewards cards tracks exactly what I purchased. My mood and/or thoughts are on Facebook and Twitter, even if I have privacy settings set to include only a small number of friends and/or family. The picture's metadata includes exactly where it was taken. All my e-mails and text messages are stored in a 3rd party's servers.

To not be a part of all of these things would be to mostly be unable to take part in modern life. To say that just because we wish to take advantage of modern technology, we lose privacy rights to the government, I say b***s***.

Also, alerts from dogs are unreasonable searches, in the way that police psychics are also unreasonable. All it takes is some rudimentary statistics to show why,

With a pretty good dog, but a largely innocent population, a dog alert will signal drugs only about sixteen percent of the time. The reason is this: Because the officer is stopping mostly innocent people, one has to be more concerned about the false positive error (alerting when there are no drugs). Because there are more cars without drugs in them, the gross number of searches that result from the error rate will be higher than the gross number of searches that result from correct alerts. Overall, there will be many more searches of innocent people than there will be searches of guilty people.

Essentially, if the null hypothesis is usually correct, confirmation is almost certainly a type I error.

They are not unreasonable searches, and Mr. Myers is a bit off-base in characterizing them as such. The dog only alerts to a designated odor. The presence of the odor is not by itself proof positive (nor is it intended or used as such) that illegal drugs are actually present. The presence of the odor merely provides the necessary "probable cause" to engage in a more extensive search.

Remember that probable cause is a LESSER standard of proof than preponderance of the evidence (the standard in civil trials) and much lower than proof beyond a reasonable doubt (the standard for conviction in criminal cases). Thus, probable cause exists in that nebulous range of probability somewhere between 1% and 50% to begin with.

Myers reliance on Bayes Theorem is suspect for a variety of reasons, but the most compelling is that it relies on a variable that is inherently unknown -- in his example, he assumes that 1 out of 50 cars stopped will contain drugs, and that the detector dog has a 95% success rate. Knowledge of the dog's success rate is easy to determine, but the first variable (1 in 50) is entirely speculative. The police don't randomly pick cars, they pick cars for a reason (i.e. some sort of unlawful behavior). Likewise, they don't call in detector dogs for every single automobile stop -- as a practical matter, no law enforcement agency has enough dogs to do this, and if you need a concrete example of this, how often has a dog been called in every time you have had a traffic ticket? Probably zero. Dogs get called in when there is a reason for believing that such a search will bear fruit.

Additionally, dogs may alert to narcotics even if a car is not CURRENTLY carrying narcotics, because the odor residue can linger. The odor may also be present on clothing worn by a passenger or driver, and not be part of the car itself. Additionally, the odor residue may accompany large quantities of currency -- many dog alerts result in the seizure of large currency amounts, without any narcotics present.

Thus, Myers is assuming an entirely speculative "innocence ratio" to come up with his 16% hypothetical number. As a practical matter, I think the probable cause threshold is a very low one to meet in the first place, and that even Myers' made-up numbers are probably pretty darn close to meeting that requirement. Would it matter if the chances of contraband were 1 in 4 (25%)? Is that high enough for probable cause to exist, even though it is only a 7% difference from Meyers' hypothetical? Is a 1 in 5 chance enough (20%)? You can argue about how low is too low a probability, but when the numbers are entirely speculative to begin with, I think anything that is a "reasonable" probability is more than sufficient to meet the probable cause standard -- and what is deemed "reasonable" is not ever going to be subject to any sort of mathmatical certainty.

And in the interests of full disclosure, I got my law degree from GMU, and was fully steeped in classwork discussing Bayes Theorem (it was a mandatory part of the curriculum when I attended long ago - don't know if it still is).

What's important is what is the best way the law could apply within the spirit of what is intended. Splitting hairs over whether a dog is an observer or an instrument (which seems to be the debate) is beside the point.

The intent was to intrude into what was clearly intended to be private and to exploit a precedent clearly intended to be applied in different circumstances.

Unfortunately constitution worship tries to find a soul in the expression of the legislation quite beyond the purpose in the context. A fool's errand.

"[I]t is generally managed without incident by the Nation's Girl Scouts and trick-or-treaters."

You don't have to agree with him to consider Scalia's opinions the most entertaining reads to come out of the Supreme Court since at least Holmes and Cardozo.

Alito is a known dog-lover. He was the lone dissent in US v. Stevens involving the sale of dogfighting videos. From his dissent: "The animals used in crush videos are living creatures that experience excruciating pain.... the harm caused by the underlying criminal acts greatly outweighs any trifling value that the depictions might be thought to possess."

The third cheer will come when the Court extends similarly robust protection to data and metadata. That, alas, still seems a long way off.
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What are you worried about?
. Cleveland man charged in West Side bus stop rape
. Task force officials say Williams abducted a woman near a bus stop at West 73rd Street and Schneider Court and raped the woman at gunpoint while videotaping the attack with his cellphone.
.http://www.cleveland.com/metro/index.ssf/2013/03/cleveland_man_charged_i...
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NPWFTL
Regards

I'm with the dissenters - if the plants had been in plain sight from the porch the legality of the warrant would not be in question. They were in 'plain smell' - emissions from the plants were detected outside the house. That is even less intrusive that 'plain sight', where the observer at least has to look into the house and at the object - here, the essence of the object traveled to the observer.

The article asserts -

"The police bringing a drug-sniffing dog onto the porch uninvited and unwarranted is as much a trespass as .... peering through your window with high-powered binoculars."

Wrong - the dog did not direct its sensory faculties into the house - what was in the house came to the dog.

For sure - if the dog had detected the odor while off the property, the warrant would be good.

Plain smell only to a specially trained dog. I agree this case parallels almost exactly the ruling on thermal imaging; if technology/training of animals renders all spectrum of light, odor and other physical phenomena available to law enforcement at all times, we lose all privacy.

No, thermal imaging shows variation in temperatures, which is radiation being emitted by and off the property. Further, this ruling doesn't require dogs to not breath in public; only that specifically trained drug-sniffing dogs cannot be brought onto your property and used without a warrant.

Both are a technology invented and created by humans to detect what we physically cannot; there should be no differentiation simply because one is organic and one is electronic.

Agreed, although in my opinion it should be. The use of thermal imaging wasn't allowed regardless of location. I just get the feeling that if an electronic device was created that replicated the function of the dogs nose the ruling would be different; what is about dogs that they get such special privilege to infringe our rights? Man's best friend, indeed! (Somewhat sarcastic)

It's not likely that a dog could detect emissions from a marijuana grow from the sidewalk, but they might be detectable via absorption spectroscopy. Right now these are research instruments, but as they get more common and less expensive, they might be coming to a DEA office near you. Stay tuned for another 4th Amendment case on that. The Question: Are IR emissions the same as chemical emissions? If you live in Colorado or Washington, you'd better get that grow license.

Continuing on the finer points, what if the dog detects the smell from outside the property? The dog and his handler(s) would not be allowed to follow the smell path into the property, would they? In other words, the dog smells something, but is not allowed (so to speak) to ascertain the geographic origin of the smell. What happens then? I realise it can get technical very quickly but it seems like this case is all about granularity.

I would prefer that the lead only be followed in the event that the officer is legitimately going to that specific property for some other purpose; similar to a joint sitting in plain view during a traffic stop. An officer shouldn't be able to simply patrol a neighborhood with a drug sniffing dog without any specific leads. Again, the same finding in the thermal imaging case.

Really, the whole damn war on drugs needs to go away, and we can get away from ridiculous arguments like this; it is the driver behind so much of the 4th Amendment's erosion.

You are correct that if the dog had alerted to a detectable odor while standing on the public sidewalk in front of the house, then the search warrant would be perfectly valid. The odors and emanations from the house are not protected in and of themselves. The issue here was that the detection device (the dog) was brought from a public area (the sidewalk), into a private area (the front yard and porch), before alerting. Kagan is off-base with her analogy, but the outcome was correct (in my view). This case basically comes down to the fact that your private property is not merely the physical house, but the private property immediately surrounding it as well. This is a pretty long-standing area of law, so it is not that remarkable.

It should be noted, however, that curtilage has one distinct difference between it and the dwelling itself -- the curtilage is partially publicly visible (because it is on the outside). Therefore, the curtilage is not protected as private property vis-a-vis anything that can be seen with normal vision by anyone else in the general public. Other aspects of the curtilage, however, remain protected as private property.

AIUI, it is assumed that if the plants inside the house were 'in plain sight' from the curtilage then the warrant could issue from that observation. The officers entry into the open space of the curtilage is not viewed as trespassory, and what he observes from there is evidence lawfully obtained, even though the observes eyes must be directed into the home itself in order to see the offending object.
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The dog's entry into the curtilage and detection of chemicals in the air IN THE CURTILAGE is less intrusive that what is allowed for the human observer - the dog does not detect anything that is not present in the curtilage; his senses are never directed into the home itself. If the more intrusive 'plain sight' evidence is allowed, then the non-intrusively acquired evidence present in the curtilage itself should be .....
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The decision hangs together if the rule is to be that the dog's entry into the curtilage is, in and of itself, trespassory even though human entry isn't. I am not aware that any such distinction was noted or discussed in any manner. Without it, the decision doesn't 'hang' IMO.

"The officers entry into the open space of the curtilage is not viewed as trespassory"

Such an entry MIGHT be trespassory depending on where the officers are going and how they get there. The walkway up to the front door is held out to the public as the appropriate publicly available access to the house (thus, the mailman, the door-to-door solicitors, etc., all can use it to approach your front door). However, if an officer jumps a rear fence, cuts through your garden, past your pool area and patio, stalks around the side of the house (peering through gaps in your curtains all the way), just to get to the front door, the entry into the curtilage could be viewed as tresspassory.

Also, the presence of "a" police dog is not necessarily trespassory (not all police dogs are detector canines) -- it was the presence of a detection device (which just happens to be a sniffer dog in this case) which was considered the inappropriate search. Thus, if a police officer lawfully walks up to your front door, takes out a Gieger counter and tries to detect radiation not detectable from the street, that would be deemed an inappropriate search.

Incidentally, I will prognosticate a bit and guess that this precise issue will be revisited in the future. The reason is that at some point, small, portable detector technology will very likely be perfected, which would allow an officer to go to a front door (without the need of a dog), and have his detector go off. The question then becomes, is this type of "search" qualitatively different?

For example, right now there are personal radiation detectors (about the size of a pager, and sometimes referred to as "Radiation Pagers") that security officers, customs/border inspectors, and emergency responders can wear on their belts. The devices are passive detectors, and are intended as safety devices -- in order to protect the person from approaching a dangerous radiation source. Could a police officer be wearing something similar on their belt someday that detects radiation, or drugs, or alcohol, or explosives? Sure, it is just a matter of time for technology to get to that point. At that time, what happens when an officer so equipped shows up at your front door (lawfully)? Is the alert that the passive detector device gives off considered an unlawful search? I think the jurisprudence on this issue may change as technology becomes more advanced.

In your meth example, the "search" would be lawful, as long as the officer was on your front porch legally to begin with. The issue is that it requires no special equipment to detect the odor, which would presumably be noticeable by the mailman and the Girl Scout cookie seller as well. The officer could even have a detector dog with him, and have the dog alert, and it would not change the outcome -- the odor is detectable by means other than the dog, so there is an independent legitimiate source (the officer's nose)for knowledge of the meth odor.
There are some great examples of similar situations that are taught as part of criminal law courses in law school. One classic example is of a police officer going door-to-door for a charitable fundraising drive, and being met at the front door by the owner, with narcotics plainly visible on a table from the front door (but not otherwise visible without the door being opened). Aside from the stupidity of the house occupants, there is nothing improper about the officer taking action on contraband that becomes evident to him or her in the normal course of their otherwise lawful interaction with the owner.

"The dog and his handler(s) would not be allowed to follow the smell path into the property, would they?"

It is highly unlikely that this type of sniff detection could occur (unless someone were deliberately makeing a trail of narcotics residue), but if it did, there are two issues that are implicated.

First, the law permits certain exceptions to the warrant requirement, and it is possible that prosecutors could successfully argue that following an odor trail meets one of the exceptions, depending on the circumstances of where the trail leads.

Second, the existence of such a directional odor trail leading to a particular location would very likely be sufficient probable cause to obtain a search warrant anyway, so the officer would not have to enter onto the property initially -- he could get a warrant on that basis and go onto the property with the dog then.

This isn't so much a dog case as it is a "curtilage" case. The latter has long been held to be protected. While dog searches still have free reign. The two just intersected here, and the "curtilgage" won.

Wake me up when the Supreme Court actually concludes the use of dogs in any context is a search, and that warrants are required for all forms of electronic data too.